BSLW6604 Lecture Notes - Lecture 13: Sherman Antitrust Act, Bargaining Unit, Labour Law
8 Jun 2018
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Department
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Antitrust Law and Labor Exemption
1. Restraint of Trade (element #2) in proving Sherman Act SS 1 Violation
a. “Quick look rule of reason” (balancing pro-competitive results against anti-competitive
results)
i. Between rule of reason and per se review. Courts are increasingly applying
standards that are neither pure per se or pure rule of reason
ii. Court will probe into certain aspects of restraint while relying on its initial
presumptions about others
iii. Most courts do so in favor of the plaintiff, based on a preliminary finding of
either market power or anti-competitive effect, but not both
iv. Ex: court claims that the “adverse effects of competition are apparent, the court
does not require proof of market power, and instead moves directly to an analysis
of the defendant’s proffered competitive justification for the restraint” (Law v.
NCAA)
2. Other Antitrust Defenses outside of Baseball Exemption
a. 1961 Sports Broadcasting Act (15 U.S.C. SS 1291)
i. Congressional response to a court ruling that NFL’s pooling agreement to
broadcast games with CBS violated antitrust laws
ii. “Antitrust laws…shall not apply to any joint agreement by or among persons
engaging in or conducting the organized professional team sports of football,
baseball, basketball, or hockey, which any league of clubs participating in
professional football, baseball, basketball, or hockey contests sells or otherwise
transfers all of any party of the rights such league’s member clubs in the
sponsored telecasting of the games of football, baseball, basketball, or hockey, as
the case may be engaged in or conducted by such clubs”
iii. Applies only to television broadcasts, not cable, satellite, internet or other new
media broadcasts
1. Threats to rescind
a. NFL Network v. Comcast
b. New England Patriots taping scandal: Sen Arien Specter
iv. Allows certain “blackout” restrictions (home market games): no competition,
protecting high school and college football Friday night and Saturday afternoons
b. Non-Statutory Labor Exemption (aka Labor Exemption)
i. Reconciliation between antitrust law and labor law
1. Antirust law seeks to promote competition
2. Labor law seeks to suppress competition
ii. Labor Exemption
1. The Supreme Court has recognized that a proper accommodation
between the congressional policy favoring collective bargaining under
the National Labor Relations Act (NLRA) and the congressional policy
favoring free competition in business markets requires that some union-
employer agreements and aspects of the collective bargaining process be
accorded a limited non-statutory exemption from antitrust sanctions
2. Supreme Court reasoned in Brown v. NFL (1996)
a. “As a matter of logic, it would be difficult, it not impossible, to
require groups of employers and employees to bargain together,
but at the same time forbid them to make among themselves or
with each other any of the competition-restriction agreements
potentially necessary to make the process work or its results
mutually acceptable. Thus the implicit exemption recognizes
that, to give effect to federal labor laws and policies and to allow
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